Watts on Article V: ‘Our Constitutional Moment’

May 6, 2014

Editor’s Note: The Mount Vernon Assembly, a group organized by Indiana Senate President Pro-Tem David Long to study constitutional reform, held its second meeting June 12-13 in Indianapolis. The group, made up of currently serving state legislators throughout the nation, first met in December 2013 to begin discussing the states’ ability to amend the U.S. Constitution as outlined in Article V of the U.S. Constitution.

by Tyler Watts, Ph.D.

The United States are in a constitutional crisis, with a national government that will not and cannot control its growth. A single indicator tells the entire story: In the 68 years since the end of World War II, federal spending has exceeded revenue in 56 of those years.[1] More importantly, the average size of federal deficits has ballooned from less than 1 percent of GDP (Gross Domestic Product) in the 1950s and 1960s to more than 5 percent of GDP today,[2] leaving young Americans and coming generations with a fiscal burden that will not be resolved without serious economic pain.

America did not become the most prosperous country in human history on the basis of massive, unsustainable government redistribution programs and crony capitalism. Without severe checks on this government growth, prosperity is jeopardized in the present and doomed in the future. Thus the need for reining in expansive government has never been more urgent. The time is nigh for us to review and renew the fundamental principles of government that made us a great, free and prosperous nation.

Fortunately, a powerful check on federal expansion exists in the form of Article V of the U.S. Constitution, which allows the state legislatures to call for a “convention for proposing amendments” to the Constitution. Although most Americans are unaware of this seldom-used tool, the combination of Congressional inertia and a vigorous revival of limited-government activism at the state and local levels means that now is the time, as never before, for state-led constitutional reform to restore fiscal sanity to the national government and ensure America’s future economic success.

The Present Crisis

According to surveys from the Pew Research Center for the People and the Press and the Gallup polling organization, public trust in government is currently at 19 percent — just a hair above its all-time low.[3] This mistrust in government cuts across party identification, indicating that the problem is not a purely political, left versus right policy disagreement. Something much more fundamental is at stake: The federal government has morphed into an ill-defined, uncontrollable beast, and this is generating mass frustration among the citizenry.

The ongoing turmoil surrounding implementation of the Affordable Care Act (Obamacare) is a case in point, although it is just the latest and largest in a long train of governmental abuses and usurpations that represent a gradual erosion of two pillars of a prosperous society: the rule of law and a market-oriented economy.

While a full treatment of the political and economic problems of Obamacare is beyond the scope of this essay, for now it will suffice to note that the law creates immense uncertainty for entrepreneurs, families and individuals regarding the future cost and availability of healthcare. This puts a serious dent in economic-growth prospects by hindering individuals’ and businesses’ planning. Moreover, the implementation of Obamacare is quite telling of the top-down rule by bureaucrats that this kind of government program involves.[4] Aside from the sheer bureaucratic ineptitude on glorious full display, what is disturbing is the capriciousness and raw power of a bureaucracy that is utterly detached and unaccountable, not only from the average citizen, but from the legislature that created it. Every week seems to bring a new delay, a new reclassification (“the Secretary deems . . .”), a new interpretation, a new tweaking of the so-called “law” — whatever is necessary to placate the interest group du jour.

The upside of all the fear and loathing arising from the Obamacare debacle, bolstered by revelations about domestic spying programs, Internal Revenue Service political targeting and, of course, the looming fiscal disasters driven by unchecked entitlement spending is the renewed focus on core questions: what, exactly, is the federal government there for? What should it be doing — and, perhaps more importantly, not doing?

We have thus arrived at a constitutional moment. The gradual bloating of the federal government’s role and power has brought about a situation that threatens our continued freedom and prosperity — the very hallmarks of the American experience. For many leaders who respect the limited government ethos that made us great, the time has arrived for us to revisit our founding principles and re-instill them for the current age. Owing to the “spend now, pay later” dynamics and interest-group capture of Congress, many have suggested that the people, working through the states, take up matters directly through a heretofore little-known, seldom-discussed constitutional safety valve — the Article 5 amendment process.

This essay explores the rationale and prospects for state-led constitutional amendments aimed at renewing and revitalizing the genius of America’s economic and political success. To wit, the rationale for an Article V convention focuses on the argument that proactive change will not emerge from the same institutions and processes that have given us the mess we’re in. Significant change will need to emerge from outside of the beltway and involve a radical approach. Fortunately, the founders in drafting the Constitution left us just the right tool for this moment in the form of the Article V convention process.

The prospect for success of an Article V convention is based on a growing awareness of inherent dysfunction in the traditional apparatuses of government. In other words, the people know we are suffering from a fundamental problem — a political cancer, rather than a simple chest cold — and that a radical approach is needed. Moreover, state legislatures are in a unique position to impose Constitutional reform on Washington due to a wave of grassroots limited-government activism that swept the country in 2010 and remains a strong political force.

The Roots of the Problem

If you don’t think record federal government budget deficits, over $17 trillion of accumulated official debt, and upwards of $200 trillion of unfunded liabilities represent a looming economic crisis of epic proportions, feel free to stop reading here. Many respectable, mainstream economists and accountants, however, such as David Walker[5] and Laurence Kotlikoff, [6] think otherwise. Their work indicates that maintaining federal entitlement programs on their current trajectories will require massive tax increases on future generations. Regardless of the precise estimates of the future burden one uses, it is clear to most Americans that the fiscal situation is unsustainable.

Politicians have noticed this, and their oft-repeated platitudes, such as “we must live within our means,” or “we shouldn’t impose a burden on our children and grandchildren,” are at least a professed concern about fiscal irresponsibility and a recognition of traditional budgetary virtue. But as is often the case with politicians, their actions continually belie their words.[7] My particular branch of study, the Public Choice school of economics, explains clearly why the political process is so prone to overspending and what kinds of reform have a realistic chance of reining in this strong tendency.

Why They Overspend

Most economists acknowledge that we need government to provide public goods — those goods that profit-seeking entrepreneurs are hard-put to provide due to “free-rider” problems. The fact that people can benefit from these goods without paying for them leaves little incentive to pay and thus provides no means for the entrepreneur to recover the costs involved with producing them. So, as the standard story goes, where markets fail to provide public goods, we form governments and agree to tax ourselves to provide courts, police, a military, roads and bridges, etc. Thus the core economic rationale of government is to provide the legal system and the basic public infrastructure within which markets and civic organizations can operate to achieve economic prosperity.

Economics, then, recognizes an important role for government as an underpinning of a successful economy and society. But economics — specifically the Public Choice school — also recognizes some pathologies inherent in governing processes, in particular those of the representative democracy form of government that we hold so dear. Public Choice economics emphasizes collective action problems within both the governmental policy-making process and the bureaucratic administration of government programs that generate built-in incentives toward waste, inefficiency and chronic recourse to overspending funded by government borrowing from the public or printing money by the central bank.

Other People’s Money

Public Choice thinking begins by acknowledging a fundamental difference in the nature of private versus public (government) action: Politicians and government bureaucrats spend other people’s money, whereas individuals spend primarily their own money.[8] Any average Joe Sixpack, having direct knowledge of his own preferences, is naturally much better placed than anyone else to make purchases that actually improve his welfare. Moreover, he has strong incentives to economize his spending, because any money he can save on, say, his favorite beer, represents extra money for satisfying his other wants. Joe Bureaucrat, on the other hand, faces much different incentives. Most of his government-agency budget is marked for spending on other people, whether recipients of federal welfare or subsidy programs, government contractors or employees, etc. Our bureaucrat may have a pretty good idea of what these people want, depending on how close of a contact he has with them. But most importantly, Joe Bureaucrat has almost no incentive to economize on government spending, for any money his federal agency saves does not generate any personal reward for him. Tightening his agency budget means spending less money on his own staff and constituencies, while saving federal taxpayers (whom he neither knows nor represents) only a few cents each. Clearly it is in the bureaucrat’s best interest to maximize his spending[9] and never return a cent to the treasury; thus he can increase his influence within the government and over his clients, and be well-positioned to justify further budget expansions at the next Congressional budget-making session.

Economists and business commentators have long been aware of this bureaucratic inefficiency; what compounds problems in the political process is the unique set of incentives faced by politicians on account of the election process. Public Choice economists assume that politicians are motivated primarily by the goals of seeking and maintaining power; in other words, their main goal is winning election and reelection. Tracing out successful campaign strategies — especially for members of Congress and the President — reveals the strong allure of wasteful government spending. Once we realize that continuing the flow of federal funding to key voting and lobbying constituencies is the path to reelection, we can understand why it is in these politicians’ best interest to spend like there is no tomorrow, for indeed there may be no political future for a candidate who fails to build a successful election or reelection coalition.

The voting process itself is fraught with perversities that Public Choice analysis has ably exposed. Mainstream pundits generally lament what they view as relatively low voter turnout.[10] More important than the actual voting rates, though, is the well-documented fact that those who do vote tend to be severely uninformed on the political issues of the day,[11] meaning voters can be swayed by emotional appeals, sound bites, negative advertisements, etc. Hence the prevalence of scandal-mongering and attack ads, and the importance politicians place on displaying the right image and being telegenic. The upshot of all of this is that, while the average citizen might claim grave concern about deficits and the size of the government, the average citizen is not a voter, and those who do vote are not well informed on the issues and are vulnerable to identity politics-based voting or crude, emotional appeals. Thus we wind up with a public that expresses concern about excessive government spending, yet systematically keeps voting for it year after year. This is an almost inexorable outcome of the structure of our political institutions; as computer programmers would say, it’s a feature of a democratic political process, not a bug.

Interest group Politics

Politicians’ strong desire to secure reelection, combined with an easily influenced voting public, culminates in the greatest malady of democratic politics: rent-seeking special-interest groups. Let’s take a look at some real-world examples of this spending disease:

A Pentagon-endorsed attempt to trim military spending by cutting back on a program to maintain the Army’s tank fleet was derailed by Congressional representatives who feared the loss of government spending — and attendant jobs — in their districts, after an intensive lobbying effort targeting key congressional committee members with substantial donations on the part of the main military contractor involved. [12]

A rare attempt at paring back the growth of unsustainable entitlement spending[13] was shut down by the American Association of Retired Persons (AARP), the main lobbying organization for senior citizens. When President Barack Obama, in an apparent nod toward fiscal restraint, proposed aligning annual Social Security cost-of-living increases with a more accurate price index — the so-called Chained CPI, the elder lobby immediately lashed out at this imagined assault on their ranks, trotting out ads featuring vulnerable-looking old folks and tag lines such as, “I’m a grandmother, not a line item on a budget.”[14]

I could go on and on — indeed, one could make a career highlighting and exposing “wasteful government spending programs” (the term itself is redundant). The point here is that each of these programs is effectively untouchable through the normal political process of congressional appropriations. Congressmen are financed by, and answerable to, well-organized constituencies that live by government favor. Cutting spending in any meaningful way amounts to biting off this hand that feeds them and jeopardizing their reelection prospects.

This political formula of electoral success through interest-group spending is perhaps the greatest political perversity of all. The dynamic at work here is captured by a core Public Choice insight: political success comes by concentrating the benefits of government programs on key interest-group constituencies and dispersing their costs among the much larger body of taxpayers or the general public.[15] Members of the interest group, whether Medicare and Social Security recipients, military contractors, subsidized solar-panel companies or government “insured” farmers, receive large individual benefits from their pet government programs ranging from tens of thousands to millions of dollars per person. They have correspondingly large incentives to vote, lobby, donate and campaign for the continuation of these programs. Indeed, the lobbying arms of such organized interest groups can, through donations, political advertising and voter-bloc mobilization, make or break the reelection prospects of any particular congressman.[16]

The average citizen, on the other hand, lacks particular knowledge of most of these wasteful government programs. And even if we all knew the gory details of these forms of government plunder, we’d have little incentive to demand that our congressional representatives put a stop to them. The individual savings for each of us would be puny in comparison with the huge individual benefits for members of the interest group.[17]

If such “rent-seeking” behavior, as economists call it, were limited to only a few interest groups scattered here and there, it would not necessarily spell economic doom, only perhaps a minor strain on an otherwise robust economy. The problem is that, by the gradual growth and evolution of government, we have almost all of us become, if not direct members of one or another interest group, at least sympathetic to them. Indeed, by the simple matter of reaching age 65, all Americans become eligible for Medicare and Social Security, and thus members of those entitlement groups. Moreover, their children and grandchildren (yes, the ones the politicians evoke such faux concern about regarding the debt burden), faced with a potential loss of “free” government money to cover grandma’s rising healthcare expenses, become highly sympathetic to these programs themselves, a virtual interest group of sorts.[18]

Thus the unstoppable train of reckless, wasteful government spending rolls on. We have reached a situation described by the great classic liberal French economist Frederic Bastiat, wherein “The state is the great fictitious entity by which everyone seeks to live at the expense of everyone else.”[19]

Realistic Reform

What then shall we do? Public Choice exposes problems inherent in politics that might make any attempt at reform seem hopeless. Perhaps this is pessimistic, but we should realize that the most common strategy of replacing our current set of leaders is likely doomed to failure for Public Choice reasons. Reform cannot focus on particular personalities but rather on changing the incentives and constraints within which these political animals operate. As Public Choice scholar William Shugart puts it:

“One key conclusion of public choice is that changing the identities of the people who hold public office will not produce major changes in policy outcomes. Electing better people will not, by itself, lead to much better government . . . Institutional problems demand institutional solutions. If, for example, democratic governments institutionally are incapable of balancing the public budget, a constitutional rule . . . will be more effective in curbing profligacy than ‘throwing the rascals out.’”[20]

In other words, effective reform involves changing the rules of the political game, and this must be imposed from outside. This is because those in the political class are quite good at playing the game as they know it and are thus loathe to change the rules on their own.

Fortunately, we have a vehicle to do just that: the Article V convention process. The most important aspect of this reform is that it is state-led, a means by which the state governments can impose reform on Washington, D.C. And state governments are primed for constitutional reform as never before.

For starters, we must note the obvious: That the burden imposed on the states by federal bureaucracy and regulation has never been greater, and this federal interference has created distrust and disillusionment with Washington. In addition to being compelled to administer much of Congress’ welfare-distribution schemes, the states have been micromanaged by federal bureaucracies in everything from land and resource use to drinking ages to voting procedures.

Obamacare was perhaps the straw that broke the camel’s back in this regard, because the imposition of its onerous requirements on both states and their citizens led attorneys general of 28 states to file lawsuits aimed at invalidating all or part of that latest federal outrage. The burdens of administering the ever-growing, nebulous federal entitlement bureaucracy are distracting and frustrating state governments, undermining their core competencies of administering justice and providing basic public goods for their residents.

Next, we should note that the last two election cycles have brought nearly unprecedented turnover in the membership of state legislatures.[21] There has rarely been a more fresh viewpoint in the state legislatures. This massive turnover arguably brings them more in line with public sentiment as opposed to interest-group sentiment, reduces the influence of the political elites, and makes state governments more amenable to imposing constitutional reform on Congress.

In addition to the fresh faces in their legislatures, state governments are inherently more responsible than the federal government. Yes, state politicos are subject to localized graft, corruption and incompetence. They face real budget constraints, however, in that they cannot borrow and spend indefinitely through the agency of a complicit, money-printing central bank, such as Congress can.[22] Moreover, although the magnitude of such effects is a matter of debate in economics literature, every state faces competition from every other state for basic government services, and its overall tax and regulatory climate. Citizens and businesses who are fed up with high state taxes or stifling state bureaucracy may migrate with relatively low cost to a state more to their liking and remain within the world’s largest economy, free-trade zone and currency union — the United States. Perhaps this is why more than 40 states have some form of legal balanced budget requirement, with 33 of those enshrining that requirement in their state constitutions.[23]

So there is a unique window of opportunity open to us. Both President John Fitzgerald Kennedy and Soviet President Mikhail Gorbachev said it: “If not us, who? If not now, when?”

While public disenchantment with Congress and the federal government will likely remain at the current nadir if not fall further, the shakeup of state legislatures may wane as activists tire and machine politics reasserts itself. Many astute, intelligent leaders in the fields of law and politics, however, have begun laying the groundwork to prepare for the fruition of this movement. Indiana, not surprisingly, is among the leaders on this issue, being one of 23 states to have issued a limited (i.e. single-issue) call for an Article V convention for proposing amendments in our state assembly.[24]

A second meeting of the Mount Vernon Assembly this summer in Indianapolis was again to bring together state legislators to more clearly define how such a convention would operate. These meetings have not been aimed at discussing specific amendments but rather to establish consensus on procedural points so that any future convention can be conducted efficiently and effectively.

Runaway Convention?

Some bona fide fiscal conservatives who would otherwise support a federal balanced-budget amendment are wary of the Article V process. They fear that the purpose of the convention may be altered or expanded to do much more than simply draft a balanced budget amendment.

There are reasons why this fear is unfounded, the most important of which is the states’ ability to limit the scope of the proposed amendment to a single issue through their convention-call legislation.[25] Model legislation introduced by Indiana state Senator David Long [26] and passed into law by the Indiana Assembly allows states to put tight reins on the process, both in terms of the allowed scope of the amendments to be considered and in terms of how the delegates to a convention may vote. Delegates are sent on behalf of the people of a given state via their representatives in the state assembly, and thus their actions may be limited and focused along such lines as the people, through their state representatives, deem appropriate.

Indeed, the only danger of an Article V convention being used to expand rather than limit government power would involve a separate grassroots effort to launch a new, separate Article V movement.

For example, if fiscal hawks were able to achieve a balanced-budget amendment via an Article V convention, progressives might be inspired to attempt a repeal or modification of the 2nd Amendment by the same process. As noted, however, there would be no way for them to piggy-back such reform onto a convention called strictly for the former purpose. Moreover, should they aspire to a fresh round of convention calls, they would face the same hurdles: not only would they have to get such calls through two-thirds of state legislatures, but they would have to convince three-fourths of the states to then ratify the removal of an ancient right cherished by large majorities of Americans.[27] Remember that there are currently 23 active calls for an Article V convention to draft a balanced-budget amendment. There are zero for altering the 2nd Amendment or other “progressive” reforms. Fiscal conservatives already have a huge advantage with the Article V process, and should strike while the iron is hot.

Thus while we shouldn’t dismiss fears that activists with different political leanings might start the Article V process anew to achieve their own versions of constitutional reform, my impression is that Americans are a fundamentally conservative — though quite tolerant — people. Constitutional reform intended to radically alter our original constitutional purpose of limiting government won’t fly here but constitutional reform meant to strengthen that original intent just might.

Conclusion

There is a palpable angst regarding our political, economic and cultural future. That is so even though America remains the world’s largest economy, where 317 million people experience the highest average per-capita standard of living ever achieved in human history. Life is still good here for the vast majority of our citizens, yet we have accumulated the largest government debt burden, created an arbitrary, inscrutable, stifling bureaucracy and stumbled into the most dysfunctional national government legislative and administrative process known to the developed world. All of this is the result of a grandiose attempt to make the national government, originally designated as having “few and defined powers,” all things to all people.

The good news is that the genius of our system — limited government and maximum individual liberty under the rule of law — is no secret. Awareness of its principles still motivates many of our citizens and is a rallying point for wiser, more astute leadership.

To borrow an expression from Thomas Paine, we have it in our power to begin the world over again. If we can freshly articulate the first principles of our governmental structure in a bold and resonating way, the people will be able to demand their delegated representatives in the police forces, courts, legislatures and executive bureaucracies adhere to them, respect them and abide by them.

The really good news is that this constitutional renewal does not require a bloody street revolution such as are tearing up countries across the globe. It was built into our durable, yet frayed, constitutional compact by men of typical American genius. Again, it is that constitutional safety valve known as the Article V amendment process.

Let us acknowledge that now is a time of crisis, and, though we are aware of the severity of such action, now is the time to grasp the handle of reform, pull hard and strive to bring about a deep and lasting renewal of those governing principles that have served us so well.

The author is an adjunct scholar of the Indiana Policy Review Foundation and director of the Free Market Institute at East Texas Baptist University.

[7] An aphorism I like to share with my students: “How can you tell when a politician is lying?” Answer: “When his mouth is moving.”

[8] This typology was popularized by Milton and Rose Friedman in their bestselling book, Free to Choose, which was subsequently produced as a 10-part documentary series on Public Television and originally aired in 1980. The entire series is available free online: http://www.freetochoose.tv/broadcast.php?series=ftc80

[9] Public Choice economics has thus identified the objective of the bureaucrat as “budget maximization,” in contrast to the consumer’s goal of “utility maximization” or the entrepreneur’s goal of “profit maximization.” See William Niskanen, Bureaucracy and Public Economics, for the seminal contribution to this literature.

[10] According to Michael McDonald of George Mason University, overall turnout of eligible voters in the U.S. in 2010 was just under 42 percent, a figure that rose to more than 58 percent in 2012. Typically, overall voter turnout percentages range from around 40 percent in midterm elections to upwards of 60 percent in presidential election years. See http://elections.gmu.edu/voter_turnout.htm

[13] Note the very terminology that has become standard here entrenches the status quo, as members of these interest-group are somehow “entitled” to other people’s money, and Congress cannot (or dares not) challenge them.

[15] See Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups.

[16]For example: A staffer from the office of a corn-belt U.S. representative tells me that the powerful lobbying efforts of the Farm Bureau make it difficult for any candidate from a farm-centric district to commit to reducing or eliminating any of the various farm-subsidy programs. A candidate who pledges to represent the general welfare by cutting off uneconomical handouts to the farmers’ special-interest group would lose the endorsement of the Farm Bureau — and therefore not only the farmer vote bloc, but their donations, campaign support, etc.

[17] According to the Environmental Working Group’s Farm Subsidy database (http://farm.ewg.org), in 2011 the top 20 percent of farm subsidy recipients (248,642 persons) received average government payments of $25,319 each, a total of $6.3 billion. The average number of employed workers was 140 million that year. Given that roughly half of all who file a tax return face a net personal income-tax liability, the cost of farm subsidies that year worked out to about $90 per taxpayer ($6.3 billion/70 million net personal-income taxpayers).

[18] Interest groups have existed as long as has politics. Indeed, constraining the influence of political “factions” was a major issue in the constitutional-ratification debates. One reason interest groups have become more dangerous in recent decades has been the erosion of fiscal balanced-budget norms due to the effects of the “Keynesian revolution” in macroeconomics, which promulgated use of the government budget as the main tool for economic-stabilization policy. Beginning in the 1930s, Keynes and his followers advocated budget deficits in economic downturns to “stimulate” consumption demand and restore full employment. While Keynes himself advocated a return to fiscal surplus in years of economic prosperity, this part of the message was largely lost on politicians, who took the “stimulus” rationale for deficits as a license for ever-increasing spending. For a full treatment, see James Buchanan and Richard Wagner, Democracy in Deficit: The Political Legacy of Lord Keynes.

[22] Several commentators, including Federal Reserve regional presidents, have suggested that the Federal Reserve’s massive purchases of U.S. Treasury securities has amounted to debt monetization, a process by which a central bank helps the government finance or retire its debt through money creation. See http://www.soundmoneyproject.org/?p=6684 for further commentary on “inflationary finance.”

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